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Anti-gay flyers violated Saskatchewan rights code: Supreme Court

In a unanimous 6-0 decision Wednesday, the court found that two of the four flyers distributed by William Whatcott violated Saskatchewan’s Human Rights Code.

Those flyers referred to gay men as sodomites and pedophiles.

But the court struck down some language in the provincial code, clearing Whatcott of any wrongdoing in connection with two other flyers.

Whatcott produced and distributed leaflets in 2000 and 2001 that contained inflammatory statements about gay men, prompting complaints to the Saskatchewan Human Rights Commission.

A tribunal ruled that Whatcott violated the province’s human rights code — but that finding was overturned by the Saskatchewan Court of Appeal.

The commission appealed to the Supreme Court, arguing that Whatcott’s flyers essentially asserted that gays and lesbians are less than human, exposing them to discrimination.

The high court agreed with respect to two of the flyers, saying they constituted hate-speech under the code.

“The tribunal’s conclusions with respect to (the two flyers) were reasonable,” Justice Marshall Rothstein wrote on behalf of the court.

“Passages of (the flyers) combine many of the hallmarks of hatred identified in the case law.”

The vilifying and derogatory representations used in the flyers created a “tone” of hatred against homosexuals, said Rothstein.

“It delegitimizes homosexuals by referring to them as filthy or dirty sex addicts and by comparing them to pedophiles, a traditionally reviled group in society,” he wrote.

However, in its ruling Wednesday, the Supreme Court struck down a portion of the Saskatchewan charter.

It found that language in the code that defines hate literature as something that “ridicules, belittles or otherwise affronts the dignity of any person” is unconstitutional.

The ruling could have implications for other provinces with similar language in their human rights codes.

The Saskatchewan tribunal originally ordered Whatcott to pay the four complainants a total of $17,500.

The Supreme Court decision means he will have to pay one complainant $2,500 and another $5,000.

At least two groups that intervened in the case expressed hope that the decision will help to clarify the hate speech laws.

“It reaffirms the case law as we have understood it for the last 25 years,” said Mark Freiman of the Canadian Jewish Congress.

“It reaffirms that there is a very high standard in order for communication to qualify as hatred.”

But another group, the Centre for Israel and Jewish Affairs, said hate-speech provisions still need to be updated to reduce or eliminate abuse.

“Canada’s hate speech protections need significant overhaul in terms of both content and process to ensure a proper balance between freedom of speech and protection from hate,” centre chair David Koschitzky said in a statement.

“The Jewish community of Canada understands all too well the corrosive impact of hate speech on vulnerable minorities.”

The Canadian Constitution Foundation denounced the ruling, saying it slams the door shut on free speech.

“The Supreme Court missed an excellent opportunity to rein in the power of various human rights commissions and tribunals to censor the expression of unpopular beliefs and opinions,” said foundation director Chris Schafer.

“Free expression is the lifeblood of democracies and all forms of expression, especially the offensive kind, needs to be protected.”

John Carpay, president of the Justice Centre for Constitutional Freedoms, was also disappointed with the decision, even though he disagreed with Whatcott’s opinions.

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